Savela Law Blog

Felony Menacing for Asking Someone to Leave Your Property While Holding a Gun? – Not Guilty

A few years ago, I was appointed to represent a man that lives in the Western, Mountainous and Remote area of Boulder County on a charge of Felony Menacing. The prosecution says that my client threatened a temporary census worker with a gun.

My client was standing on his porch when the person passed 4 no trespassing and private property signs to get to his home. He was asked to leave politely. The person did not identify as a census worker. The person appeared to be casing the vacant homes on the property. And, the gun was specifically pointed in the opposite direction of the trespasser. My client’s home has marks on the outside where bears have tried to break in. He keeps a gun close by when he is outside due to the bear activity. He also knows that it takes a minimum of 20 minutes for police to arrive at his home. If he is facing an attack, he must defend himself. He never said the trespasser was attacking, but he was concerned that the person was on the property, refusing to leave and rude. My client simply watched and kept the gun nearby for protection.

This case went to trial. The prosecutor would not dismiss when it is a clear case of self defense and defense of property to stand on your own porch, holding gun and asking someone to leave your property. I suspect the prosecutor was hoping a Boulder jury would not like that my client owned and possessed a gun, an AK-47 style rifle at that. I suspect they were hoping the jury would be so scared that they would convict, despite the law. The jury did their job correctly and acquitted.

With the affirmative defense of self-defense, the prosecution must disprove that my client was acting in self-defense beyond a reasonable doubt. They raised their voices and called my client’s lawfully possessed guns an “arsenal.” Only one gun was ever seen by the complaining witness, so why did the judge allow the rest of the guns into evidence? Two of the 5 guns were old and not operational. Client kept them because they were passed down by his grandfather. They tried to use emotion to get the jury to hate my client and convict him when he was simply standing on his own porch asking someone to leave his property while in possession of a gun. That is not a crime, not even close.

In Colorado, the state constitution provides:

Article II, § 13 of the Colorado Constitution provides that “[t]he right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.”

Despite this clear language that is directly related to the defense of this case, the prosecution objected to me putting this amendment into evidence, as a jury instruction nor even arguing it in closing. The judge, insensibly, agreed with the prosecution, stating that it was not relevant. It is hard for me to understand what could be more relevant than the founding document of our state supporting my client defending himself and his property. Fortunately, jurors can see when a trial does not seem fair.

A few months later, I was a party and a man approached me. He was the foreperson of this jury. He told me that when he got home after the first day, being selected as jury member and hearing opening only, he got very ill. He likely had food poisoning. His wife tried to convince him to call in sick and get off the jury. This gentleman responded, “if do not go back and I find out that man was convicted, I will not be able to live with myself.”

Neither the foreperson nor most of the rest of the jury were gun people. They were not members of the rocky mountain gun owners (RMGO) nor the national rifle association (NRA). They were not comfortable with firearms. But, they were willing to follow the law on self-defense and defense of property. They were not going to punish my client for exercising a right that they themselves did not choose to exercise. Just like any trial, choosing the jury is very important.

Friday, February 22, 2019

#HonestResults

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